Homosexual Acts Not Constitutionally Protected--Justices

A sharply divided Supreme Court today upheld a Georgia law that makes sodomy a crime, ruling that consenting adults have no constitutional right to private homosexual conduct.

The 5-4 ruling represented a defeat for the numerous gay rights organizations that had mobilized against the Georgia law.

The high court reversed the federal appeals court ruling that the Georgia law, which defines sodomy as “any sexual act involving the sex organs of one person and the mouth or anus of another,” infringes on a “fundamental” constitutional right.

The Supreme Court previously has ruled that decisions to marry, have children, practice birth control or have an abortion are fundamental constitutional rights.

However, writing for the high court today, Justice Byron R. White said, “We think it evident that none of the rights announced in those cases bears any resemblance to the claimed constitutional right of homosexuals to engage in acts of sodomy.”

Married Couples Included

The Georgia law, similar to those in more than a third of the states, also makes certain heterosexual acts a crime even if performed by a married couple. However, there is no record of Georgia enforcing the law against heterosexuals, and today’s decision did not address that issue.

Today’s decision appeared to remove any doubt about the constitutionality of those laws, as well as the constitutionality of state fornication laws making it a crime for two unmarried people to have sex.

“Plainly enough, otherwise illegal conduct is not always immunized whenever it occurs in the home,” White said. “It would be difficult . . . to limit the claimed right to homosexual conduct while leaving exposed to prosecution adultery, incest and other sexual crimes even though they are committed in the home.”

Joining White were Chief Justice Warren E. Burger and Justices Lewis F. Powell, William H. Rehnquist and Sandra Day O’Connor.

Justices Harry A. Blackmun, William J. Brennan, Thurgood Marshall and John Paul Stevens dissented.

‘Invading the Houses’

Blackmun said he saw no justification for “invading the houses, hearts and minds of citizens who choose to live their lives differently.”

The Georgia law was challenged by Michael Hardwick, an Atlanta bartender and homosexual who was arrested in 1982 for committing sodomy in his home. He has not been prosecuted under the law, which carries a maximum penalty of 20 years in prison.

The arresting officer had gone to Hardwick’s home to issue a warrant in another case and had been told he could find Hardwick in his bedroom.

Hardwick sued Georgia officials in 1983, seeking to have the law declared unconstitutional.

A married Georgia couple also challenged the law, saying they wished to engage in heterosexual conduct it prohibited. Lower courts dropped the couple as challengers after saying they failed to prove they would be prosecuted under the sodomy law.

In another case today, the court ruled 7 to 2 that pretrial hearings must be open to the press and public unless a defendant shows the right to a fair trial would be violated.

Ruling in a case brought by the Riverside, Calif., Press-Enterprise, the justices said public access to preliminary hearings is essential to the nation’s system of justice.

The case evolved out of murder charges against Robert Diaz, who was arrested in 1981 and eventually convicted of killing 12 hospital patients by administering massive doses of the drug lidocaine.